about to get out of the track when his wagon was struck, presented a question for the jury. They were not bound to believe him. If they did believe him, it was still a question of fact whether he had exercised the degree of care which the circumstances demanded. It cannot be said, as a matter of law, that a man has been free from contributory negligence under the facts testified to by the plaintiff.

The accident occurred between blocks, where the rights of the defendant, while not exclusive, were paramount, and where the motorman had a right to assume that the plaintiff would observe the superior rights of the railroad and where it appears that the only excuse for the plaintiff being upon the track was to avoid the mud, which, so far as appears, was by no means impassable, it is assuming a good deal for a trial court to attempt to determine for the jury all of the real issues in an action for negligence. For these errors, as well as for the error in refusing the request of the defendant to charge that the defendant had a paramount right to its tracks in the middle of a block, the judgment appealed from must be reversed.

The judgment appealed from should be reversed, with costs, and a new trial granted. All concur.

LORENZO v. FAILLACE et al.

(Supreme Court, Appellate Division, Second Department. April 23, 1909.) 1. MASTER AND SERVANT (§ 265*)-INJURIES TO SERVANT-DEFECTIVE SCAFFOLD -ACTION-PRESUMPTIONS.

Under Labor Law (Laws 1897, p. 467. c. 415) § 18, providing that a master shall not furnish unsafe scaffolding, a servant, suing for injuries from the breaking of a scaffold, need not in the first instance introduce any evidence from which the cause of the break might be inferred, nor evidence of any defect in the material, except such as might be drawn from the fact of its breaking.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 877, 887; Dec. Dig. § 265.*]

2. MASTER AND SERVANT (§ 265*)—INJURY TO SERVANT-ACTIONS-EVIDENCEREBUTTING PRESUMPTION OF MASTER'S NEGLIGENCE.

The master not being an insurer of the safety of the scaffold, if it introduces uncontradicted testimony of uninterested witnesses that there was no defect in the part of the scaffold which broke, but that the break was caused by negligence of the injured servant's fellow servants in using the scaffold in a manner for which it was not designed and contrary to their express instructions, the presumption of negligence would be overcome.

[Ed. Note. For other cases, see Master and Servant, Dec. Dig. § 265.*] 3. MASTER AND SERVANT (§ 265*)-INJURIES TO SERVANT-ACTIONS EVIDENCE. In an action by a servant for injuries caused by the breaking of a scaffold furnished by the master, evidence held to show that the break was caused by the negligence of the injured servant's fellow servants in dropping a heavy stone upon the scaffold, instead of putting it down carefully, as instructed by the master, and to rebut the presumption of the master's negligence arising from the breaking, under Labor Law (Laws 1897, p. 467, c. 415) § 18.

[Ed. Note. For other cases, see Master and Servant, Dec. Dig. § 265.*]

Appeal from Westchester County Court.

Personal injury action by Constantino Lorenzo against Antonio Faillace and another. From a judgment for plaintiff, and an order denying a new trial, defendants appeal. Reversed, and new trial ordered.

Argued before WOODWARD, JENKS, GAYNOR, BURR, and RICH, JJ.

George C. Andrews, for appellants.

Frederick B. Van Kleeck, Jr., for respondent.

BURR, J. We think that the motion, made at the close of the case, to direct a verdict in favor of the defendants, should have been granted. The action was brought to recover damages for personal injuries sustained through the fall of a scaffold upon which plaintiff was at work, and which had been constructed by defendants' servants to be used in connection with the erection of a building. The plaintiff proved that a cross-piece which ran from an upright post to the top of the wall, and upon which the boards of the scaffold were placed, broke in the center, and the scaffold fell, and he sustained injuries in consequence thereof. Although he introduced no evidence from which the cause of the break might be inferred, nor any evidence of any defect in the material used in the construction of the scaffold, except such as might be drawn from the fact of the breaking of the cross-piece, under the provisions of the labor law this was sufficient in the first instance. Laws 1897, p. 467, c. 415, § 18; Stewart v. Ferguson, 52 App. Div. 317, 65 N. Y. Supp. 149, affirmed 164 N. Y. 553, 58 N. E. 662; Cummings v. Kenny, 97 App. Div. 114, 89 N. Y. Supp. 579. In the case last cited this court, speaking through Mr. Justice Woodward, said:

"The duty of the master, under the provisions of the labor law, is to use reasonable care to furnish safe appliances; and when a ladder, scaffold, or other appliance mentioned in the statute breaks while in use for the purposes for which it was designed, it raises a presumption of negligence which, unexplained, justifies a recovery."

But a master is not an insurer of the safety of the scaffold (Pettersen v. Rahtjen's American Composition Co., 127 App. Div. 32, 111 N. Y. Supp. 329), and if the defendants introduce testimony of disinterested witnesses to the effect that there was no defect in the timber which broke, but that the breaking was caused by the careless or negligent conduct of plaintiff's fellow servants in using the scaffold in a manner for which it was not designed to be used, and contrary to their express instructions, and there is nothing to contradict this testimony, either in the shape of direct testimony or circumstances tending to discredit the same, the presumption of negligence is completely overcome, and defendants are absolved from responsibility (Cunningham v. Dady, 191 N. Y. 152, 83 N. E. 689).

In the case at bar, after the plaintiff had rested and the motion to dismiss had been denied, defendants introduced affirmative evidence that the broken stick was examined immediately after the accident and found to be a piece of sound timber. They also proved by an entire

ly disinterested witness that the immediate cause of the break was the dropping of a heavy stone, weighing from 150 to 200 pounds, by the fellow workmen of plaintiff upon the scaffolding at the point where it broke. The stones above referred to, which were to be used in the construction of the building, were carried onto the scaffold in hand barrows, and the laborers who carried the stones were instructed to put these down carefully and then move the stone off. It appeared that the work was usually done in this way, but at the time of the happening of the accident, instead of doing that, they dropped the stone, the cross-piece broke, and the scaffold went down. The plaintiff was cross-examined in regard to the happening of the accident, and said that:

"I did not take any particular notice of them [the laborers] at the time they put the stone down on the scaffold. I did not notice, as a fact, that when those men delivered this stone on this scaffold they dumped it off the handle bars, instead of laying it down on the scaffold, as they were accustomed to do. At the time the accident happened I did not notice whether those men dropped the stone or not. The only thing I noticed, the scaffold broke, and down I went."

The court correctly charged the jury that:

If "those two men that were carrying the stones to the plaintiff * came around there and threw those stones down in a reckless, careless way under their feet, and the scaffold was all right, but they knocked it down in a careless way, and this plaintiff was injured by the carelessness of his fellow servants, then the defendants are not liable."

The application of this rule of law to the uncontradicted evidence should have compelled the granting of the motion made at the close of the case; for the evidence that the accident happened in exactly such a manner was neither contradicted nor discredited.

The judgment and order appealed from should be reversed, and a new trial ordered; costs to abide the event. All concur.

ETTLINGER v. WEIL et al.

(Supreme Court, Appellate Division, First Department. April 23, 1909.) FRAUD (§ 12*)—FRAUDULENT REPRESENTATIONS.

Evidence in an action against vendors of realty for falsely representing to the purchaser that the property was leased at a certain rental held to require reversal of a judgment for plaintiff.

[Ed. Note. For other cases, see Fraud, Cent. Dig. § 14; Dec. Dig. § 12.*] Laughlin, J., dissenting.

Appeal from Trial Term, New York County.

Action by Louis Ettlinger against Jonas Weil and another. From a judgment for plaintiff, and from an order refusing a new trial, defendants appeal. Reversed, and new trial granted.

Argued before INGRAHAM, MCLAUGHLIN, LAUGHLIN, CLARKE, and SCOTT, JJ.

E. M. Shepard, for appellants.

Samuel Untermyer, for respondent.

INGRAHAM, J. On a former appeal (94 App. Div. 291, 87 N. Y. Supp. 1049), upon evidence which does not substantially differ from the evidence on the second trial, this court sustained a verdict for the plaintiff. It was also held that the proper measure of damage was the difference between the value of the property as it was in fact when the conveyance was made and the value as it would have been if the representations as to rental were true. Upon an appeal to the Court of Appeals (184 N. Y. 179, 77 N. E. 31), that judgment was reversed. No fault seems to have been found with any ruling of the trial court, except in relation to the measure of damages. Discussing that question, the Court of Appeals said:

"As the plaintiff lost no rent under the Carroll lease through the representation of the defendants, the damages are confined to the effect of that representation upon the fee value of the property. The measure of damages is the difference between the market value of the premises if they had been as represented and their actual market value. Both parties assent to this proposition, but they differ as to the proper method of applying it to the case in hand."

The court then discussed two rulings upon evidence. One is allowing a question asked an expert as to what was the value of the premises with a lease upon the store, basement, and subcellar at $13,000 a year, and held that that was competent. The second question that was considered was:

"What, in your opinion, was the fair market value of the property at that time, June, 1897, with a lease of the store, basement, and subcellar for two years from February 1, 1897, at $10,500 per year?"

And the court held that that question was not competent, because it depended upon the accident of two minds meeting upon a certain sum in making a lease of a new building with a desirable tenant for a short term. It was said that rental value tends to prove fee value, because, other things being equal, the income of property is a measure of its market value; that rental is capable of exact determination, and does not depend on a collateral agreement in the form of a lease of part of the property. In other words, as I understand that decision, the opinion of the expert must be based upon the actual rental value of the property, and not upon the value of the property based upon the fact that the owner had agreed to a lease for two years at $10,500 a year. The representation was that there was an actual lease for two years at $13,000 a year, when, as a fact, the actual rent that was paid for the two years was $10,500 a year; and the question to be determined was, What damage was sustained by the plaintiff in consequence of that false representation?

A real estate expert called for the plaintiff was allowed to testify that the fee value of the property, if the store and basement had been actually leased for two years at $13,000 a year, was $600,000. The witness was then asked what, in his opinion, was the actual value of this property in June and July, 1907. That was objected to as incompetent, irrelevant, and immaterial. The objection was overruled, and the witness answered, "$750,000." He was then asked what was the rental value of the store, basement, and subcellar at that time. That was objected to by the defendants, and the objection was sustained;

the court holding that the defendant could introduce proof as to that. Upon cross-examination the witness testified that the value fixed by him was the value of the property if it had been vacant; that the value of the property and the basis of rental enter into the making of this estimate; but he subsequently appears to have changed his testimony, so as to say that, entirely vacant, the property would be worth $725,000, but with a lease realizing a rental of $10,500 per year it was worth $750,000. The witness further said, upon crossexamination, that the fact upon which he based his opinion as to $750,000 was that the store, basement, and subcellar was leased for $10,500 a year.

Considering the testimony of the witness upon cross-examination, it appears that the testimony upon which the jury based its verdict. was substantially the same as the evidence on the former trial, which was condemned by the Court of Appeals. As I understand the decision of the Court of Appeals, it was improper to base a verdict upon the difference between the actual value of the property with an existing lease of $13,000 and the value of the property with a lease for $10,500; that the true measure of damage was the difference between the value of the property with a lease of $13,000 a year and the value of the property based upon its actual rental value, and not based upon the fact that the property was leased for $10,500 a year. Yet the court excluded the testimony that was offered by the plaintiff to show what the actual rental value of the property was at the time, but allowed the witness to testify to his opinion as to what the property was actually worth based upon the fact that there was a lease in existence for $10,500 a year. Upon rebuttal, however, this same expert was recalled, and testified that the rental value of the store, basement, and subbasement, on December 3, 1896, was $10,000. The defendants offered evidence tending to show that the actual rental value of this store, basement, and subbasement at the time of the same was from $13,000 to $13,500, and in rebuttal the plaintiff offered testimony to show that the rental was from $10,000 to $10,500. It followed, as matter of course, that, if the rental value was actually $13,000 or more, the plaintiff sustained no damage by reason of the representation that the property was rented for $13,000. It was said by the Court of Appeals on the former appeal:

"False representations do not warrant the recovery of damages unless they cause pecuniary injury. A misrepresentation that the premises were leased at a certain rate could result in no damage, provided the rental value equaled or exceeded that rate. As the rent was paid plaintiff at the rate represented, he suffered no harm unless there was a contraction in fee value, caused wholly by the fact that the actual rental value of the part affected by the representation was less than it would have been if the representation had been true. The effort was not to establish the rental value of the entire building, but to directly answer the claim of the plaintiff that the representation caused him pecuniary loss."

Thus it would seem that the real question for the jury was, first, to determine what the actual rental value of the premises was at the time of the sale. If they found that the rental value was less than